copyright term. To do so, they must act any
If you are the author of a pre-1978 work
time during 75 to 80 years after the work
that still has value more than 50 years
was first published. This is a second window after publication, or the widow, widower,
of opportunity to get back copyright
child, or grandchild of such an author, you
ownership.
or other family members should consult a
copyright attorney some time during the
EXAMPLE: Agnes published a novel in
1940. The publishing contract contained
56th year after publication. The attorney
a provision transferring her renewal term
will be able to determine if a terminable
rights to her publisher. Agnes could have
transfer of renewal term copyright
terminated the renewal term transfer by
ownership rights was made and, if so, help
acting during 1996–2001, but she failed to do you take the necessary procedural steps to so. However, Agnes or her heirs or executor
terminate it.
can still terminate the transfer as to the last
If more than 61 years have elapsed since
20 years of the novel’s 95-year copyright. To
the work was first published and the renewal
do so, they must act sometime during 2015–
rights transfer was never terminated, then
2020—that is, 75–80 years after the novel
calendar a new date—75 years after the
was first published.
work’s publication—and see an attorney then.
l
C H A P T E R
Using Other Authors’ Words
10
Introduction ............................................................................................................................................... 250
Three-Step Analysis to Determine If Permission Is Required .................................. 250
Introduction to the Fair Use Privilege .........................................................................................251
When Is a Use a Fair Use? ................................................................................................................... 253
The Purpose and Character of the Use ............................................................................... 253
The Nature of the Prior Work .................................................................................................. 257
The Amount and Substantiality of the Portion Used ................................................. 259
The Effect of the Use on the Market for, or Value of, the Prior Work ................ 260
Fair Use Online ...........................................................................................................................................261
Examples of Fair Use Online .......................................................................................................261
No Fair Use Found .......................................................................................................................... 262
What About Social Media? ........................................................................................................ 262
Fair Use and the Photocopy Machine ......................................................................................... 263
Copying by Teachers ...................................................................................................................... 264
Copying by Libraries and Archives................................................................................................ 266
Copying for Archival or Replacement Purposes or at User’s Request ................ 267
Copying Works Over 75 Years Old .........................................................................................270
Other Fair Uses ..........................................................................................................................................271
Parody ....................................................................................................................................................271
Calligraphy ...........................................................................................................................................275
Copying for the Blind .....................................................................................................................275
250 | THE COPYRIGHT HANDBOOK
To quote is not necessarily stealing.
Three-Step Analysis to Determine
Quotation can be vital to the fulfil ment of If Permission Is Required
the public-enriching goals of copyright law.
—Judge Pierre N. Leval To determine whether you need to obtain
permission to use any given item, you need
to answer the following three questions.
Introduction
If the answer to all three is yes, you need
permission; otherwise, you don’t.
This chapter is about using other authors’
words. Sooner or later, almost all of us
Are you taking an author’s expression?
feel the need to quote, closely paraphrase,
photocopy, or otherwise use what others
You only need permission to use an
have written. Here are some examples:
author’s expression—that is, the particular
• Nancy, a book reviewer, quotes several sequence of words an author writes down
passages from a novel in the context of or otherwise fixes in a tangible form to
a published book review.
express his or her ideas, explain facts, and
• Phil, a historian and biographer, quotes so on. Ideas and facts themselves are in
from several unpublished letters and
the public domain, freely available for all
diaries written by his subject.
to use. This idea-expression dichotomy is
• Regina copies several paragraphs from discussed in detail in Chapter 5, “ What an online news article in her blog.
Copyright Protects.” Review that chapter
• Sylvia, a poet, quotes a line from a
to determine whether what you want to
poem by T.S. Eliot in one of her own
use is expression. If you’re sure it isn’t, you
poems.
don’t need permission to use it. If there’s
• Kay, a librarian, makes a photocopy
any doubt in your mind, however, assume
of the library’s only remaining copy of that it is expression and go on to the next
Stephen King’s latest bestseller.
question. (Of course, photocopying another
• Arnold, a high school teacher, makes
author’s work always constitutes a taking of
30 copies of a newspaper article to
that person’s expression.)
distribute to his class.
Is the author’s expression
Some of these uses are lawful without
protected by copyright?
obtaining the permission of the owner of
the copyrighted material; others would
Not all expression is protected by copyright.
constitute copyright infringement absent
Much is in the public domain and may
the copyright owner’s consent. The purpose be used freely without seeking anyone’s
of this chapter is to enable you to know
permission. All expression contained in works
when permission is and is not required.
for which copyright prote
ction has expired
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 251
is in the public domain. This includes any
In addition, certain types of expression
work published in the United States before
are not entitled to copyright protection at
1923 and works published during 1923–1963 all; this includes, for example, works by
which have not been timely renewed. Review U.S. government employees, titles and
the discussion of copyright duration and
short phrases, and certain blank forms.
renewal in Chapter 9, “Copyright Duration.” (See Chapter 5, “What Copyright Protects,”
for a detailed discussion.)
Codification of Fair Use Privilege
If the expression is protected by
copyright, go on to the next question.
The fair use privilege was original y created
by judges in the 19th century. It was subse-
Does your intended use of the protected
quently made a part of the Copyright Act
expression go beyond the bounds of fair use?
when it was enacted in 1976. Section 107 of
You do not need permission to use other
the act provides that:
authors’ protected expression if your use
“The fair use of a copyrighted work …
constitutes a fair use. However, permission
for purposes such as criticism, comment,
is required where the intended use of the
news reporting, teaching, … scholarship,
expression goes beyond the bounds of
or research, is not an infringement of
fair use. The fair use privilege is discussed
copyright. In determining whether the use
in detail below. If, after reading that
made of a work in any particular case is
discussion, you decide that your intended
a fair use the factors to be considered …
use of expression protected by copyright is
include:
not a fair use, you must seek permission to
1. the purpose and character of the use,
use it. The mechanics of seeking permission
including whether such use is of a
commercial nature or is for nonprofit
are discussed in Chapter 14.
educational purposes;
2. the nature of the copyrighted work;
Introduction to the
3. the amount and substantiality of
Fair Use Privilege
the portion used in relation to the
copyrighted work as a whole; and
As we discussed in Chapter 1, the purpose
4. the effect of the use upon the
of the copyright laws is to advance the
potential market for, or value of, the
progress of knowledge by giving authors an
copyrighted work.”
economic incentive to create new works.
Authors and their heirs are automatically
granted the exclusive right to reproduce,
adapt, perform, and display their works for
252 | THE COPYRIGHT HANDBOOK
at least 70 (and usually more) years; they
Can Fair Use Apply Where
are, in effect, granted a monopoly over the
Permission Is Denied?
use of their work.
If you ask a copyright owner for permission
to use his or her work and the owner
Copyright Office Fair Use Index
refuses, can you then use it without
permission on the grounds of fair use?
In a laudable effort to help the public
The Supreme Court has said yes: “If the
understand the fair use rules, the United
use is otherwise fair, no permission need
States Copyright Office has compiled an
be sought or granted. Thus, being denied
online Fair Use Index. It contains detailed
permission to use a work does not weigh
summaries of some of the most notable
against a finding of fair use.” ( Campbell v.
court decisions involving fair use, going
Acuff-Rose Music, Inc. , 114 S.Ct. 1164 (1994).)
back to 1846. Reading these summaries,
This means that even though you’re cer-
which are searchable by type of work
tain that your intended use is fair, you can go
involved, can help you understand how
ahead and seek permission for the use from
courts apply the complex fair use rules.
the copyright owner because you want to
The Fair Use Index can be found at www.
avoid the possibility of expensive litigation. If
copyright.gov/fair-use.
the copyright owner proves to be unreason-
able and withholds permission, you can then
go ahead and use the material on the basis
However, there are situations where strict
of fair use. But, of course, the copyright
enforcement of an author’s monopoly would
owner could still sue you. If the use real y
hinder, rather than promote, the growth of
was fair, you would win the suit even though
knowledge. An obvious example is that of a
you had unsuccessful y sought permission.
researcher or scholar whose own work depends
on the ability to refer to and quote from prior
scholars’ work. No author could create a new
To avoid these types of results, the fair
work if first required to repeat the research of
use privilege was created. Pursuant to the
every author who had gone before.
fair use rule, an author is permitted to make
Of course, scholars and researchers could limited use of a prior author’s work without be required to bargain with each copyright
asking permission. All authors and other
owner for permission to quote from or refer copyright owners are deemed to give their
to prior works. But this would likely prove
automatic consent to the fair use of their
so onerous that many scholars would hunt
work by others. The fair use privilege is
for another line of work, and the progress of perhaps the most significant limitation on a knowledge would be greatly impeded.
copyright owner’s exclusive rights.
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 253
When Is a Use a Fair Use?
to see whether the subsequent work merely
serves as a substitute for the original or
Determining whether the fair use privilege
“instead adds something new, with a further
applies in any given situation is not an exact
purpose or different character, altering
scientific process. Rather, it requires a delicate the first with new expression, meaning, or balancing of all the factors discussed below.
message.” ( Campbell v. Acuff-Rose Music,
Probably the only useful rule for fair use is
Inc. ; also see “Can Fair Use Apply Where
this variant of the golden rule: “Take not
Permission Is Denied?” above.) The Supreme
from others to such an extent and in such a
Court cal s such a new work transformative.
manner that you would be resentful if they so
This is a very significant factor. The more
took from you.” (McDonald, “Non-infringing transformative a work, the less important
Uses,” 9 Bul . Copyright Society 466 (1962).)
are the other fair use factors, such as
The following four factors must be con-
commercialism, that may weigh against a
sidered to determine whether an intended
finding of fair use. Why should this be? It
use of an item constitutes a fair use:
is because the goal of copyright to promote
• the purpose and character of the use
human knowledge is furthered by the
• the nature of the copyrighted work
creation of transformative works. “Such
• the amount and substantiality of the
works thus lie at the heart of the fair use
portion used, and
doctrine’s guarantee of a breathing space
• the effect of the use upon the market
within the confines of copyright.” ( Campbel
for the copyrighted work.
v. Acuff-Rose Music, Inc. )
Not all these factors are equal y important
Following are very typical examples
in every case, but all are considered by the
of transformative uses where preexisting
courts in deciding whether a use is fair.
expression is used to help create new and
Moreover, the factors often interact with each different works. These types of uses are
other. For example, the more transformative
most likely to be fair uses:
the intended use, the less significance that
• criticism and comment—for example,
may be given to other factors that could
quoting or excerpting a work in a
otherwise weigh against a finding of fair use,
review or criticism for purposes of
such as commercialism. So keep that in mind
illustration or comment
when making your own fair use analysis.
• news reporting—for example, sum-
marizing an address or article, with
The Purpose and Character of the Use
quotations, in a news report, and
• research and scholarship—for example,
First, the purpose and character of your
quoting a passage in a scholarly, scien-
intended use must be considered in determin-
tific, or technical work for il ustration or
ing whether it is a fair use. The test here is
clarification of the author’s observations.
254 | THE COPYRIGHT HANDBOOK
Fair Use Checklist
You can use the fol owing Fair Use Checklist to help determine if your intended use is a
fair use. See the appendix for directions on how to download a copy of this form.
The Copyright Handbook Page 44